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The majority respond with two observations in support of
respondent’s position: First, Wis. Stat. 757.36 has been revised
to give the attorney a lien “upon the proceeds or damages” as
well as “upon the cause of action.” The majority suggest that it
is no longer necessary to keep the underlying cause of action
alive in order effectively to assert an attorney’s lien under
Wisconsin law.
The majority also point to Wis. Sup. Ct. R. 20.1.16 and
20.1.2(a) (1998), which include the ethical rules that a client
may discharge an attorney at any time and that “a lawyer shall
inform a client of all offers of settlement and abide by a
client’s decision whether to accept an offer of settlement of a
matter.” The majority suggest that these rules mean that a
Wisconsin attorney cannot acquire an interest in a lawsuit that
would enable the attorney to continue to press it in the face of
the client’s expressed desire to settle, or at least that it
would be an ethical violation for the attorney to continue to
press a case that the client had settled or desired to settle.
Admittedly, the matter is unclear, bearing in mind that Section
III of the contingent fee agreement entered by Mr. Kenseth and
other class members with Fox & Fox provide that the client can
not settle his case without the consent of Fox & Fox, and that
the Preamble to the Rules of the Wisconsin Supreme Court
governing professional conduct for attorneys says that the rules
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